Posted by Dale Carpenter:
A compromise on federal civil unions?
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235297081
From Sunday's New York Times, a [1]joint op-ed by David Blankenhorn
and Jonathan Rauch advocating federal recognition of state-conferred
same-sex marriages and civil unions, with an asterisk:
It would work like this: Congress would bestow the status of
federal civil unions on same-sex marriages and civil unions granted
at the state level, thereby conferring upon them most or all of the
federal benefits and rights of marriage. But there would be a
condition: Washington would recognize only those unions licensed in
states with robust religious-conscience exceptions, which provide
that religious organizations need not recognize same-sex unions
against their will. The federal government would also enact
religious-conscience protections of its own. All of these changes
would be enacted in the same bill. . . .
Linking federal civil unions to guarantees of religious freedom
seems a natural way to give the two sides something they would
greatly value while heading off a long-term, take-no-prisoners
conflict. That should appeal to cooler heads on both sides, and it
also ought to appeal to President Obama, who opposes same-sex
marriage but has endorsed federal civil unions. A successful
template already exists: laws that protect religious conscience in
matters pertaining to abortion. These statutes allow Catholic
hospitals to refuse to provide abortions, for example. If religious
exemptions can be made to work for as vexed a moral issue as
abortion, same-sex marriage should be manageable, once reasonable
people of good will put their heads together.
Rauch and Blankenhorn are among the ablest defenders of their
respective positions, pro and con gay marriage, in the country. Both
have written excellent books on the subject. What they say will be
noticed by all sides, especially because they say it together. There
will be strong objections on both sides: from SSM opponents who oppose
recognition in principle and not just for instrumental reasons, and
from SSM supporters who will worry about the practical consequences
and who will wonder why such marriages alone will be qualified by
morals exemptions.
There is much to think about here. A conditional offer of federal
recognition would be a powerful inducement to the states since they
won't want their recognized gay relationships excluded from federal
advantages. For SSM supporters, that's good if it speeds state-based
recognition of gay families but not so good if it hollows out that
recognition.
My initial and very tentative reaction, as a same-sex marriage
supporter, is that the Blankenhorn-Rauch compromise probably gives
little away since SSM was never really a threat to religious liberty
anyway. As a practical matter, gay families gain a lot in very
important federal benefits in exchange for what appears to be barring
lawsuits that either weren't -- or shouldn't -- be available. The
devil is in the details -- what exactly do "robust
religious-conscience exceptions" cover? -- but the op-ed starts a
conversation about federal legislation that might be politically
achievable in the near future.
References
1. http://www.nytimes.com/2009/02/22/opinion/22rauch.html?ref=opinion
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